Citation NR: 9620394
Decision Date: 07/24/96 Archive Date: 08/02/96
DOCKET NO. 94-26 612 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for the cause of the
veteran’s death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and her daughter
ATTORNEY FOR THE BOARD
Anthony D. Dokurno, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1942 to
October 1945. He died in December 1992, and the appellant is
his widow. This matter comes to the Board of Veterans’
Appeals (Board) on appeal from a February 1993 rating
decision by the Department of Veterans Affairs (VA) Regional
Office (RO).
At the time of his death, the veteran had service-connected
disabilities, with ratings as follows: dysthymic disorder
(50 percent); chronic prostatitis (10 percent); and malaria
(noncompensable).
REMAND
The threshold inquiry in all cases is whether the claim is
well grounded. One who submits a claim to VA has the burden
of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is well
grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1995). If
this burden is carried, VA is then obligated to assist in
developing facts pertinent to it. A well-grounded claim is
one that is plausible, i.e., capable of substantiation.
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). There must be
more than a mere allegation. The claim must be accompanied
by evidence that justifies a belief by a fair and impartial
individual that the claim is plausible. Tirpak v. Derwinski,
2 Vet.App. 609, 611 (1992).
The death certificate of record indicates the immediate cause
of the veteran’s death was respiratory insufficiency due to
bilateral pneumonia as a likely consequence of lymphoma with
chronic anemia. His October 1945 Separation Qualification
Record indicates his original military occupational specialty
for 1 and 1/2 months was Chemical Warfare Basic (979). The
appellant testified during a December 1993 RO hearing that
the veteran had often said he had been exposed to mustard gas
during his initial entry training. She also testified that
he entered service in healthy condition, but returned from
service with a persistent cough. A family friend wrote in
December 1993 that the veteran returned from service with a
lung disorder. Another friend stated that the veteran
experienced breathing problems upon return from service, and
attributed it to some of the “training maneuvers” in service.
On service discharge physical examination his lungs were
normal and his chest X-ray study was negative for
abnormality. The veteran noted on his November 1945, initial
application for VA benefits that he was treated on one
occasion at the dispensary of the Second Chemical Battalion
(Italy), apparently in January 1943. There are no records of
this treatment in the claims folder. Other service medical
records indicate that in April 1944 the veteran was treated
for a fever of undetermined origin while a member of Company
B, Second Chemical Battalion. There are no service medical
records specifically documenting complaints involving the
lungs, and personnel records indicate the veteran became
qualified as a light truck driver and performed such duty for
the remaining 36 months of his active military service.
Medical records indicate the veteran complained of shortness
of breath to a private physician in December 1972. In August
1973 he was diagnosed as having malignant nodular lymphoma,
which eventually required surgery. A June 1975 VA outpatient
treatment examination revealed chronic obstructive pulmonary
disease. In September 1992 he was diagnosed as having
squamous cell carcinoma of the maxilla, with sinocutaneous
fistula to the right cheek.
In the Board’s opinion, the foregoing evidence establishes
that the appellant’s claim is plausible, in that it appears
capable of substantiation. Murphy, 1 Vet.App. at 81; Tirpak,
2 Vet.App. at 611. The veteran’s personnel records confirm
that he was originally qualified as a specialist in chemical
weapons and that while so assigned he sought treatment for an
unspecified condition. Family members and friends have
indicated he spoke of exposure to mustard gas in service and
that his lung and breathing problems stemmed from that time.
Full-body exposure to mustard gas, together with the later
development of a chronic form of any of the following
conditions, is sufficient to establish service connection for
that condition: Laryngitis, bronchitis, emphysema, asthma,
corneal opacities, and cancers such as nasopharyngeal, lung
(except mesothelioma), or squamous cell carcinoma of the
skin. 38 C.F.R. § 3.316. Full-body exposure to mustard gas
or Lewisite during active service, together with the
subsequent development of a chronic form of laryngitis,
bronchitis, emphysema, asthma, or chronic obstructive
pulmonary disease is also sufficient to establish service
connection for that disorder. Moreover, notwithstanding the
specific list of diseases presumed to be service incurred,
there is nothing to preclude the establishment of service
connection on a direct basis for a disability resulting from
mustard gas exposure. Combee v. Brown, 34 F.3d 1039 (Fed.
Cir. 1994).
A lay person can provide probative eye-witness evidence of
visible symptoms, however, a lay person cannot provide
probative evidence as to matters which require specialized
medical knowledge acquired through experience, training or
education. Espiritu v. Derwinski, 2 Vet.App. 492 (1992).
Additionally, where the determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
to the effect that the claim is plausible or possible is
required.” Grottveit v. Brown, 5 Vet.App. 93 (1993).
However, in the Board’s opinion, the duty to assist in the
development of this claim is particularly great in light of
the unavailability of full Army medical records, particularly
those that may directly pertain to the veteran’s in-service
exposure to mustard gas. Cf. Moore v. Derwinski, 1 Vet.App.
401, 406 (1991).
VA’s duty to assist has therefore arisen. 38 U.S.C.A.
§ 5107(a); 38 C.F.R. §§ 3.103(a), 3.159. The case is
therefore REMANDED for the following actions:
1. After a thorough review of the
veteran’s personnel records, the RO
should attempt to determine whether the
veteran’s qualification in basic chemical
warfare involved exposure to mustard gas
or Lewisite during training or
thereafter. It is recommended that the
RO seek unit histories and morning
reports of the veteran’s unit(s) through
official channels, including the U.S.
Army Historical Center and the National
Personnel Records Center. The
appellant’s assistance in specifically
identifying any other relevant unit data
should also be sought.
2. The RO should contact the VA Advisory
Review Staff or Rating Procedures Staff
to determine if the veteran’s name
appears on a list of participants in
mustard gas testing/training. If his
name is not on a list, personal and unit
identification and a copy of this REMAND
should be forwarded for verification of
exposure to mustard gas to:
Commander
U. S. Army Chemical and Biological
Defense Agency
Attention: AMSCB–CIH
Aberdeen Proving Ground, MD 21010–
5423.
3. The RO should then ensure that the
claims folder is made available to and
reviewed by VA specialists in pulmonary
disorders and/or cancer, if available.
After a thorough review of the entire
folder, these examiners should be
requested to provide an opinion
concerning whether there was a causal
relationship between any in-service
exposure to mustard gas or Lewisite and
the cause(s) of the veteran’s death.
Thereafter, the RO should review the record. If the benefit
sought on appeal remains denied, the appellant and her
representative should be furnished a supplemental statement
of the case and given the opportunity to respond. The case
should then be returned to the Board for further appellate
consideration.
J. F. GOUGH
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1995), only a
decision of the Board of Veterans’ Appeals is appealable to
the United States Court of Veterans Appeals. This remand is
in the nature of a preliminary order and does not constitute
a decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (1995).
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